The challenge to uphold the standards contained within the Convention relating to the Status of Refugees (1951) as well as other international human rights instruments requires reform of the legislative framework and supporting regulations, increased cooperation among the different institutions addressing refugee issues, improved human rights and refugee law education of caseworkers & lawyers, and reduced external pressure to be effective in terms of production in favour of protection.
The grey zone between asylum and humanitarian protection is a result of several factors:
With respect to the Act concerning the Entry of Foreign Nationals into the Kingdom of Norway and its implementing regulations, the study found that the law was unclear: the text of the refugee definition contained in Article 1 of the 1951 Convention is absent and the normative terminology remained undefined.
Review of the cases revealed a lack of systematized approach when discussing persecution, in part based on the tendency to rely on past practice instead of developments within theory and practice of human rights and refugee law:
First, there was limited reference to human rights instruments (although this appeared to improve in 2003). Second, recognition of human rights focused on jus cogens rights (of which no derogation is ever permitted), and there was limited cumulative analysis of human rights. Third, persecution committed by non-state Actors was less likely to be recognized as forming basis for recognition of asylum and more likely to receive secondary status. Similarly, persecution occurring within the context of generalized violence or other conflict is often deemed not to merit asylum, but rather humanitarian protection. Fourth, another factor limiting the grant of asylum was the lack of recognition of mixed motives for persecution (criminal + persecutory reasons). Fifth, past persecution often resulted in a grant of humanitarian protection over asylum, regardless of potential evidence of threat of future persecution or possible relevance for application of a compelling reasons exception. Sixth, the maintenance of a comparative standard which requires individuals to demonstrate that they are more at risk of persecution than others also renders recognition of asylum difficult.
The notion of torture or cruel, inhuman, or degrading treatment revealed gaps in application due to lack of comprehensive guidelines and variable reliance on proffered evidence (including medical and psychiatric evidence). To some extent, it appeared that criteria for protection on account of compassionate grounds sterke menneskelige hensyn required less analysis than the grounds for legal protection, and hence may in part explain the preference for such protection over asylum.
Reference to the protection categories contained within the 1951 Convention is narrow in scope, political opinion appears to be referred to most often over the other categories, however it is interpreted restrictively and social group, which is considered to be a flexible category particularly applicable to vulnerable groups such as women, is applied in a limited manner. This renders difficult the establishment of a nexus to the persecution in order to grant asylum.
The lack of harmonization of burden of proof standards pertaining to asylum determination as opposed to non-refoulement analysis relevant for humanitarian protection, as well as maintenance of a high burden of proof, are among the primary reasons why subsidiary protection is given more often.
Another important factor is the merger of credibility determination with protection analysis, asylum is more often given to highly credible applicants, while cases involving doubts regarding credibility or risk assessment are granted humanitarian protection. Evidentiary problems complicate the determination: First, partial submission or analysis of evidence. Second, partial identification of protection issues and standards by lawyers and caseworkers. Third, lack of corroborative evidence in areas where documentation is limited due to security concerns limiting entry of international organizations and NGOs. Fourth, merged arguments by lawyers and NGOs pertaining to asylum and humanitarian protection.
The use of standard answers drafted towards exclusion from asylum also promote selection of humanitarian status.
The cases revealed confusion regarding mixed motives of flight (in which fear of persecution combines with economic incentive) as well bias in terms of provision of asylum to persons facing risk of gender persecution based on age, regardless of the existence of common protection needs. Further, the existence of policies as pertaining certain groups, based on nationality or vulnerable status often results in provision of humanitarian protection rather than asylum based on individual specific circumstances.
Limited reference to un-remedied effects of persecution or presence of new threats in post-settlement situations, as well as variable use of internal flight alternative, particularly with respect to situations involving internal displacement situations are additional problems diminishing the grant of asylum. In addition, there appears to be a tendency to formalistically rely on the presence of international organizations to justify a finding of lack of protection need.
There is a need for greater transparency in processing of cases. The failure to place the analysis behind the grant of asylum or humanitarian protection within the decision violates basic principles of due process and inhibits understanding of protection criteria among the lawyers and applicants, as well as the society at large.
There is a need for increased inter and intra institutional communication as different sections within institutions have different practices with regard to the same protection issues, and there is variance between UDI and UNE with respect to asylum policies.
Finally, political actors and the media place significant pressure on the immigration institutions to be productive in terms of quantity of decisions and thereby diminish the ability of the caseworkers to improve their protection analysis.
This report provides recommendations for legal and systemic reform in order to diminish the grey zone between asylum and humanitarian protection.
Although it is important to point out areas for improvement, it is equally important to recognize that the caseworkers perform an important function within the society. They take their work very seriously and deserve respect for their professionalism. The provision of protection to those in need is a noble task; their efforts seek to ease the ills of human condition in surrogacy to failed states of origin. In light of this, the caseworkers and the institutions they work for deserve a higher degree of respect within the society.
Conclusions pertaining the Low Asylum Rate
The conclusion of this author is that the low asylum rate is due to the following factors:
- Lack of clarity and comprehensiveness within the Immigration Act with respect to asylum, humanitarian protection, and permit on compassionate grounds
- Lack of education among caseworkers and lawyers within human rights, refugee law, and humanitarian law resulting in narrow interpretation of the protection categories:
- political opinion
- Reference to political activity rather than opinion
- Lack of reference to imputed political opinion
- Elitist application of political opinion – leaders is favoured over non-leaders
- social group
- Reference to political activity rather than opinion
- Lack of harmonized burden of proof standards between asylum and non-refoulement determination, maintenance of an excessively high burden of proof standard
- Maintenance of a de facto dualist approach to the role of human rights within the national legal regime
- Pressure to maintain a restrictive policy by the government and media
- Conflation of general immigration policies with refugee protection policy
- Maintenance of a culture of exclusion within the immigration authorities based on reliance on past practice as opposed to developments within theory or international/comparative case law
- Limited recognition of persecution by non-state actors and persecution occurring within situations involving generalized violence or protracted conflict.
- Failure to identify mixed motives in cases involving acts which merge criminal motives with persecutory motives linked to the Convention protection categories.
- Failure to identify mixed motives for migration, economic concerns may coexist with fear of persecution,
- Limited use of cumulative analysis of human rights violations which constitute persecution collectively (socio-economic and civil and political)
- Use of a comparative standard in cases originating from protracted conflict, applicants have to demonstrate that they are in more danger than others rather than assessing the case with respect to the applicants own well-founded fear irrespective of the fact that there are many others in the similar situation
- Conflated arguments presented by lawyers and NGOs-merger of arguments pertaining to asylum and humanitarian protection
- Conflated analysis of evidentiary and protection issues by caseworkers, decisions are based more on credibility than protection need-lack of evidentiary/credibility guidelines
- Faulty collection and analysis of evidence by lawyers and/or caseworkers- lawyers may fail to submit corroborative evidence, caseworkers may fail to address such evidence when submitted
- Use of standardized answers by the immigration authorities which are drafted towards exclusion from protection
- Use of standard formulations by lawyers which do not present full arguments or identify all relevant protection issues or standards
- Insufficient consideration of past persecution as evidence of future persecution, lack of recognition of the protection continuum pertaining to persecution, alternate emphasis on the past v. the future depending on the facts in order to promote exclusion from protection
- Lack of sufficient analysis of the threat of persecution in return situations to post-settlement societies, formalistic reliance on presence of International Organizations to justify lack of finding of protection need
- Misapplication of Internal Flight Alternative in situations with internal displacement crises- Lack of comprehensive guidelines to establish criteria for analysis
- Insufficient intra and inter-institutional communication
- Lack of application of the exception to the cessation clause, Article 1 C 5 of the 1951 Convention
- Excessive pressure to be productive in terms of quantity of decisions instead of quality (protection is sacrificed in favor of production)
- Tendency towards group assessment in UDI based on nationality, ethnicity, sexuality etc.- provision of asylum, humanitarian protection, or rejection linked to group membership rather than individual assessment
- Tendency towards age bias within the asylum determination process- Lack of non-discrimination standard within the law, absence of guidelines on women and children
- High number of manifestly unfounded claims, in part due to lack of regular migration alternatives
Conclusions pertaining the selection of humanitarian protection instead of asylum
The reasons for selection of humanitarian protection instead of asylum are:
- Use of a lower burden of proof for the non-refoulement assessment granting humanitarian protection based on threat of persecution as opposed to the asylum determination also contingent on a determination of a threat of persecution. The applicant may fail to meet standard of proof on risk of future persecution (med rette), but may meet lower standard of fear of persecution for non-refoulement (kan frykte).
- Use of higher burden of proof for threat amounts to threat of torture amounting to humanitarian protection as opposed to standard utilized in the asylum determination.
- Lack of reference to subjective criteria relevant to establishing a well-founded fear of persecution, reliance on objective criteria which limit consideration of individual variances from general trends.
- Maintenance of comparative standard in cases originating from nations undergoing generalized violence or internal conflict. Applicants have to demonstrate that they are in more danger than others rather than assessing the case with respect to the applicants own well-founded fear irrespective of the fact that there are many others in the similar situation.
- Failure to identify Convention grounds in the execution of the war-targeting, the objective of the war may be linked to Convention Ground.
- Partial application of the 1951 Convention protection grounds:
a. Social group, which is considered to be a flexible category, is rarely applied.
b. Political opinion is referred to more than other categories, and it is applied in a limited manner:
i. Reference to political activity rather than opinion (which would include passive forms of opinion)
ii. Lack of reference to imputed political opinion- there is no requirement that it should be actually expressed or that it actually be held by the applicant as long as the persecutor believes it to be true.
iii. Elitist application of political opinion, leaders are favored over non-leaders (use of the spotlight approach).
- Preference for jus cogens violations over non-jus cogens violations, insufficient cumulative analysis of human rights.
- Lack of consideration of relevant human rights standards, including CRC, CEDAW, etc. dependents such as child not always evaluated separately.
- Non-recognition of mixed motives
a. Identification of criminal motives is utilized to deny asylum, regardless of the fact that there may be other motives linked to the 1951 Convention categories.
b. Asylum seekers may have both an economic interest and a fear of persecution, which prompts migration.
- Insufficient analysis of the de facto ability of the States ability or willingness to protect the applicant:
a. Reliance on general reports or the presence of international monitors inhibits finding in favor of the individual.
b. Applicant is faulted for his failure to seek protection in State of origin.
c. Reference to States alleged lack of support for persecutory acts by Non-State actors, irrespective of whether it actually takes measures to punish offenders.
- Merger of credibility determination with protection analysis. Asylum is given to highly credible applicants, while cases involving credibility doubts or doubts regarding risk of persecution are granted humanitarian protection.
- Pre-determined policies regarding groups. Humanitarian protection will be given according to nationality or other select group identity, limiting grant of asylum as it is assumed that protection is given with the lower status. Compliance with guidelines for group, e.g. families with children, unaccompanied minors, Chechens.
- Shifting practice regarding time of persecution. When evidence points to past persecution, the caseworker argues that future risk is necessary. When the evidence points to future risk, the caseworker states that there is insufficient past persecution. There may be lack of recognition of past persecution:
a. Violations are deemed not to be severe enough.
b. If severe, violations are deemed to amount to harassment criminal acts often committed by Non-State actors.
c.Violations are characterized to be a consequence of generalized violence (thus lacking individual targeting).
d. Lack of consideration of past persecution as evidence of risk of future persecution.
e. Lack of consideration of extreme past persecution such as torture or severe rape which may merit consideration of Article 1 C 5 if the 1951 Convention. Failure to apply the exception to the cessation clause in cases involving compelling reasons, severe torture or rape linked to Convention Ground. Although these would address only a small percentage of cases, it merits attention.
- Insufficient recognition of non-state actor persecution- it is often labelled as criminal acts.
- Confusion regarding mixed motives pertaining to flight (the existence of economic incentives may be deemed to overshadow protection need) and uneven protection relating to the age of the applicant – adult females threatened by gender persecution may be denied protection given to minor girls.
- Insufficient assessment of the threat of persecution in post-settlement situations.
- Focus on compassionate grounds, e.g. health, minor status, etc.
- There are changed circumstances in the country of origin, such as shift in regime but lack of stability renders return unfeasible, e.g. Afghanistan.
- Lack of corroborating evidence, e.g. dearth of reports on forced recruitment of children or adults in Asia, the Middle East, and Africa, lack of medical documentation, or other documentation.
- Partial submission of evidence, arguments or identification of protection standards and issues by lawyers, partial evaluation of submitted evidence by Caseworkers.
- Application of 15 month rule leads to non-consideration of asylum or humanitarian protection issues
In contrast, cases receiving asylum include high profile political actors who are highly credible (good memory of events, sufficient details, etc.), or in the case of gender persecution, have caseworkers with a solid understanding of human rights and refugee law.